Commission Opinion [COM(97) 2005 final - Not published in the Official Journal]

Commission Report [COM(98) 701 final - Not published in the Official Journal]

Commission Report [COM(1999)509 final - Not published in the Official Journal]

Commission Report [COM(2000)709 final - Not published in the Official Journal]

Commission Report [COM(2001) 700 final - SEC(2001) 1752 - Not published in the Official Journal]

Commission Report [COM(2002) 700 final - SEC(2002) 1408 - Not published in the Official Journal]

Commission Report [COM(2003) 675 final - SEC(2003) 1207 - Not published in the Official Journal]

Treaty of Accession to the European Union [Official Journal L 236 of 23.09.2003]

2) SUMMARY

As regards the mutual recognition of qualifications and diplomas, the European Commission considered, in its Opinion of July 1997, that the task of compliance should be achievable in the medium term if current efforts were intensified. As regards the free movement of persons, significant efforts were required to resolve the outstanding issues in the medium term. In the Justice and Home Affairs (JHA) field, provided that continuing efforts were made to improve the situation, it was thought that within the next few years Poland would be able to comply with the rules applicable in the European Union (EU).

The November 1998 Report took the view that on the whole Poland had made progress in every sector except drug prevention. Further efforts were needed, however, if the medium-term objectives of the Accession Partnership were to be achieved: the necessary legislation must be speedily enacted, administrative organisation must be improved and more resources made available, particularly for asylum questions and the fight against organised crime.

The October 1999 Report emphasised that legislative progress in this field had been very modest. Poland had to fill huge gaps in the short term, in particular with regard to legislation on aliens. Efforts would also be needed with regard to the conclusion of readmission agreements and the fight against drug trafficking. Administrative structures should be improved in terms of human and financial resources as well. Special attention had also to be paid to the development of international judicial and police cooperation.

The November 2000 Report found that progress had been made in virtually all the areas of justice and home affairs. But a greater effort was needed to combat corruption, which, at that time, was the most serious problem facing the Polish administration.

In the November 2001 Report, the Commission stated that progress in matters of justice and home affairs was encouraging, especially with regard to border controls, police cooperation, data protection, visas and immigration. However, the Commission asked Poland to continue to fight against fraud and corruption and to improve judicial cooperation.

The October 2002 Report states that Poland has made substantial progress and the legislation has for the main part been transposed. Progress is also reported in establishing necessary administrative capacities, but further efforts must be made in each of the JHA fields.

The November 2002 Report notes that Poland has made satisfactory progress in most fields. However, the Commission stresses that greater effort is needed to implement legislation on fraud and corruption, visas, external borders, the fight against drug trafficking and money laundering. Poland needed also to improve cooperation between its agencies and to strengthen its coordination structures.

COMMUNITY
ACQUIS

Free movement of persons

The principle of free movement and the right to residence of all European citizens is provided for by Article 14 (former Article 7a) of the Treaty establishing the European Community (EC Treaty), as well as by the provisions on European citizenship (Article 18, former Article 8a). Among the matters of common interest to the Member States, the Maastricht Treaty included asylum policy, the crossing of the external borders of the Union and immigration policy. The Amsterdam Treaty, which came into force on 1 May 1999, incorporated these into the EC Treaty (Articles 61 to 69). Free movement of persons is a key element of an " area of freedom, security and justice ".

At the same time, common rules are being laid down relating to checks at the external borders of the Union, visas, asylum and immigration policies.

Member States already apply common rules in these areas under the Schengen agreements. These intergovernmental agreements have been incorporated into the European Union following the entry into force of the Amsterdam Treaty and now form part of the Community acquis to be adopted by the applicant countries. However, most of the Schengen acquis will not be applied to the new Member States as soon as they join but later, once this has been specifically decided by the Council. This is the aim of the plan of action for adopting the Schengen criteria on the basis of a realistic timetable for implementing the Schengen Agreement.

The binding rules which new Member States must have in place as soon as they join include some of the rules on visas, the rules governing external borders and migration, asylum, police cooperation, the fight against organised crime, terrorism, fraud, corruption, drug trafficking, customs cooperation and legal instruments relating to human rights. As regards such issues as border control, illegal immigration, drug trafficking, money laundering, organised crime, police and legal cooperation, data protection and mutual recognition of court judgments, the new Member States should be administratively capable of dealing with them. It is also crucially important to organise the judiciary and the police in an independent, reliable and effective manner.

Asylum policy

European asylum policy, a matter of common interest since the Maastricht Treaty, has been a Community as well as a national responsibility since the Amsterdam Treaty came into force in 1999.

At the Tampere European Council in October 1999, the European Union leaders decided on a two-stage strategy, with the second stage being aimed at setting up a common European asylum system based on a common asylum procedure and equal asylum status valid throughout the European Union. The first stage - laying down minimum rules - should be operational by 1 May 2004.

Immigration policy, a matter of common interest since the Maastricht Treaty and a Community responsibility since the Amsterdam Treaty, is currently being drawn up. Article 63 of the EC Treaty states that the Council is to adopt, within a period of five years after the entry into force of the Treaty of Amsterdam (i.e. by 1 May 2004):

measures relating to conditions of entry and residence and to procedures in Member States issuing long-term visas and residence permits, including those for the purpose of family reunion;

measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States.

As regards "legal immigration", the Conclusions of the Tampere European Council state that the European Union should:

approximate national legislations on the conditions for admission and residence of third-country nationals;

ensure fair treatment of third-country nationals who reside legally on the territory of its Member States;

step up its efforts to ensure the integration of immigrants.

As regards "illegal immigration", the Tampere European Council agreed in 1999 to combat illegal immigration and the organised crime which takes advantage of it. In February 2002 the "plan of action to fight illegal immigration" was adopted.

Judicial cooperation in civil matters

The main instruments to facilitate civil judicial cooperation have been drafted at international level (the Brussels and Rome Conventions, for example). The Maastricht Treaty was an important first step, providing a legal basis for judicial cooperation in civil matters between Member States and allowing the adoption of several conventions. Following the entry into force of the Treaty of Amsterdam, which places judicial cooperation in civil matters at Community level, these conventions have been gradually replaced by regulations of which the most significant are:

the Regulation concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility.

In 1999 the Tampere European Council described the principle of mutual recognition as the cornerstone of the construction of the area of freedom, security and justice. Finally, the Nice treaty extended co-decision to judicial cooperation in all civil matters except family law.

Police, customs and judicial cooperation in criminal matters

The existing legislation in these fields stems mainly from the cooperation framework defined in Title VI of the European Union Treaty or the " third pillar ". The Amsterdam Treaty amended the legal provisions in the matter by creating a link with the " area of freedom, security and justice ". Now Title VI deals mainly with police cooperation, the fight against organised crime, the fight against drug trafficking, the fight against corruption and fraud, judicial cooperation in criminal matters and customs cooperation.

The objective of setting up an area of freedom, security and justice (set by the Amsterdam Treaty) should be achieved by:

closer cooperation between police forces and customs authorities through the European Police Office (Europol);

closer cooperation between judicial authorities including cooperation through the European Judicial Cooperation Unit (Eurojust), which was set up by the Nice Treaty;

approximation, where necessary, of the rules on criminal matters in the Member States;

The existing legislation relating to justice and home affairs presupposes a high degree of specific cooperation between government departments as well as the preparation and effective application of rules and regulations. To this end, several programmes have been launched in recent years: Grotius II-Criminal, OISIN II, Stop II, Hippokrates and Falcone. All of these programmes have been taken on by AGIS, a single framework programme for co-financing projects submitted by promoters from Member States and the applicant countries in the fields of justice and home affairs.

The Europe Agreement and the White Paper on the countries of Central and Eastern Europe and the internal market

The Europe Agreement with Bulgaria includes provision for cooperation in the fight against drug abuse and money laundering.

The White Paper does not deal directly with third-pillar subjects, but reference is made to matters such as money laundering and freedom of movement of persons, which are closely related to justice and home affairs considerations.

EVALUATION

With the establishment of a body responsible for the protection of personal data in 2002 and the amendment to the Personal Data Protection Act in August 2001, Poland aligned much of its legislation with the acquis. The Council of Europe Convention of 1981 for the protection of individuals with regard to automatic processing of personal data was ratified in May 2002 and entered into force in September 2002.

The amendment to the Aliens Act, which came into force in July 2001, completed Poland's alignment with the Union acquis. Poland also terminated the visa exemption for several countries (Russia, Belarus, Ukraine, Georgia, Kazakhstan, Moldova, Mongolia, Azerbaijan, etc.). A coordination unit was set up in December 2001 with the task of preparing the implementation of the European Union visa arrangements. Poland must, however, further step up its efforts as regards its implementation and administrative capacities (staff, IT).

With regard to control of external borders and alignment with the Schengenacquis, Poland has made steady and significant progress even though considerable financial constraints hampered the implementation of the planned improvements. In August 2001 a Schengen action plan was adopted to incorporate the border management strategy. The amendments to the Border Guard Act 1990 provide for extension of the powers of border guards and give them new powers (operational powers for border protection, the fight against corruption, etc.). Certain other amendments, however, still have to be made.

Cooperation between services (border guards, police and customs) continues to improve and the necessary measures to strengthen cooperation with its Eastern European neighbours have been taken.

The implementation of a new training concept started in May 2002. Lack of staff remains, however, a major problem and a weak point in integrated border-management strategy, despite accelerated recruitment in 2003 with 1325 new agents being taken on. Infrastructures at border-crossing points along the eastern external border have now been adapted and improved.

The new Aliens Act, which came into force in September 2003, has had a positive effect on immigration and asylum policy. Immigration legislation has now been aligned with the Community acquis. However, Poland does not yet have an overall policy on migration; or a standard training system for all services involved in this field. Administrative structures are in place but their responsibilities and procedures overlap. After signing two readmission agreements (with Spain in May 2002 and with Austria in June 2002), Poland has stepped up its efforts to reach other such agreements, particularly with Russia and Belarus. With regard to asylum, the number of cases was reduced considerably in 2002 and legislation has been fully aligned with Community acquis. Major efforts are needed with regard to the reception and integration of refugees. Poland should also turn its attention to analytical and organisational measures for joining EURODAC and name its national point of access for Dublin II.

Poland has given priority to the fight against organised crime. The Police Act was amended in August 2001 to give the police more operational powers (authorisation to check bank and insurance accounts of suspects). Considerable efforts were made to equip the police with the latest technological tools (the central automated system for identifying fingerprints was extended to regional and local level). There are still, however, manpower problems. The Central Investigation Office, set up in 2000, uncovered 158 criminal organisations and is now a key player in the fight against crime.

Under the Collection, Processing and Transmission of Criminal Information Act, a national intelligence centre (KCIK) was set up to coordinate and exchange information between Polish enforcement services.

However, cooperation between agencies must be further improved, not least as regards common access to databases, especially with a particular view to combating cigarette and drug smuggling.

Following the signing of an association agreement with Europol, a Polish liaison officer was seconded on a permanent basis to Europol. In November 2001 a new organisational unit for cooperation with Europol was established within the International Police Cooperation Office (Interpol). The cooperation agreement was ratified in July 2002. Cooperation agreements were also signed with Spain, Belgium, Lithuania, Finland, Germany and Ukraine. Lastly, a strategy to fight ordinary crime (car thefts, burglaries, thefts with violence, etc.) was launched in February 2001.

In November 2001 Poland ratified the United Nations Convention of 2000 against Transnational Organised Crime (the Palermo Convention); the country has signed but not yet ratified two out of three protocols (trafficking in women and children and smuggling of migrants) and has not signed the third protocol on trafficking in firearms. Poland has also yet to sign the Council of Europe Convention on Computer-related Crime.

As regards the fight against terrorism, Poland has ratified the main conventions, such as the UN Convention for the Suppression of Terrorist Financing, but should speed up its preparation to accede to the Convention on Mutual Assistance in Criminal Matters between the Member States as soon as it joins the European Union.

As regards the fight against fraud and corruption, Poland ratified the 1999 Council of Europe Civil Law Convention on Corruption in September 2002 and has adopted an anti-corruption strategy. However, the fight against corruption has made very little progress; an official report dated July 2003 indicates that the practical impact of the strategy has been quite limited. The Penal Fiscal Code and the Penal Code have not systematically been adapted, despite the December 2000 Act amending the penal code and criminal procedure, the Act to combat unfair competition, the Public Order Act and the Banking Act. Poland also still has to ratify the 1995 Convention on the protection of the European Communities' financial interests and its protocols, in order to align its legislation regarding the liability of legal persons.

As regards the fight against drugs, Poland has taken the necessary legislative measures and adopted the national programme for fighting drug addiction.

The Community acquis governing money laundering has been largely transposed with the Money Laundering Act enacted in September 2000 and with recent amendments which came into force on 1 January 2004. A financial information unit has been set up but its computer system needs adapting. At international level, the country has initiated cooperation with the Egmont Group, the Council of Europe and the Task Force on Organised Crime in the Baltic Sea Region. Poland has also signed a cooperation agreement with the Czech Republic.

Poland is also in the process of aligning its legislation on customs cooperation. In 2000, ten new working parties (State Criminal Investigation Office, Taxation Council, etc.) were set up.

In April 2002 the Polish authorities concluded three memoranda of understanding with corporate organisations to combat drug trafficking. In 2003 the customs administration also concluded agreements with the police, the border guard and the National Security Agency for Fighting Customs and Border Crime. The negotiations on mutual assistance agreements are continuing with several countries.

With regard to judicial cooperation in civil and criminal matters, Poland has continued to make progress in aligning itself with the acquis. The penal code and the criminal procedure code were amended in August 2001 with a view to facilitating Poland's accession to the 1995 Convention relating to Extradition between the Member States of the European Union. Poland should focus especially, however, on the implementation of the Council Framework Decision of 13 June 2002 on the European Arrest Warrant.

Amendments to criminal procedure came into force on 1 July 2003 with a view to simplifying and speeding up criminal procedure in order to cut down the backlog, reduce the number of pending cases and ensure that rulings are satisfactorily enforced. Similar measures to simplify and speed up civil procedure came into force on 14 August 2003.

Remarkable progress has been made in equipping the judiciary with proper IT. The Commission notes that the Minister for Justice continues to exercise administrative powers with regard to the organisation of the judiciary, with the result that the independence of the judiciary could be compromised.

The Ordinary Courts Establishment Act, which entered into force in October 2001, more effectively organises the secondment of judges to other institutions. Plans for creating a Polish judicial network, which will become part of the European Judicial Network after accession, were completed. In April 2002 a public prosecutor was appointed as the contact person for cooperation with Eurojust.

Poland has ratified all the legal instruments relating to human rights that form part of the justice and home affairs acquis.